Extradition and Sovereignty

Extradition has been a touchy subject between Canada and the US at various times in history. During the Vietnam War, the US was infuriated by Canada’s refusal to return draft dodgers, but those were the days when Canada had a very liberal government that annoyed the US and stood up for widely held Canadian values whenever they thought they could get away with it. Times have changed.

Gary Botting wrote a paper http://www.law.utoronto.ca/documents/zcalt04/bottling.doc that is well worth reading about the new (1999) Extradition Act and cases leading up to it, as well as the subsequent results. Botting quotes the Parliamentary Secretary to the Minister of Justice, who said of the need for a new Act, “Even with countries with a similar legal tradition such as the United States, we have heard on numerous occasions how difficult it is to obtain extradition from Canada.” The implication would be that extradition ought to be easy, so easy in fact, that formal sworn affidavits and charges ought to be waived, and only a request from a US prosecutor obtained. No Canadian court would accept such a request as ‘evidence’ from a Canadian prosecutor. And in fact, no Canadian prosecutor is permitted to submit the same to the US; these changes to the evidence required are not reciprocal! Botting states, “The new Act effectively reduces extradition in Canada from a traditionally judicial process (as it remains in the United States) to an essentially administrative process.”

In contrast to the extradition treaty between Canada and the US, where Canada behaves as a lesser US territory instead of a sovereign state, Canada has no extradition treaty with China. The reasons for this are China’s poor human rights record and death penalty. But despite all of the high profile cases where the US has kidnapped, tortured, fixed evidence, jailed with no trial, and violated all human rights with their prisoners, despite the huge and unknown number of jails the US operates internationally and their continued use of torture and other human rights violations in those jails, despite a US judge threatening sentences extended to the maximum and US prosecutors threatening prison rape for those who challenge their extradition order (see paper by Botting), and despite the fact that the US has one of the highest rates of incarceration of all wealthy nations, Canada hands its citizens over to US courts after nothing more than a request from a prosecutor. There have also been frequent cases where Canada will deport a person after an extradition request has been made, as an alternative and quicker method of extradition. And, despite having full legal power and a UN human rights obligation to request that the US death penalty not be imposed, Canada has frequently refused to make such a request.

The US – Canada Extradition Treaty (1976 plus amendments) states that extradition applies in cases where the “offenses are punishable by the laws of both Contracting Parties by a term of imprisonment exceeding one year.” The Canadian Extradition Act (1999) specifies two years as the sentencing requirement. For some reason, the treaty with a country that has far harsher sentencing and far worse prison conditions than Canada, has half the sentencing requirement of any of our other extradition partners. In either case, the first point of law is that the offense must be of a specified serious level in both countries. According to the Department of Justice, the role of the extradition judge is to determine if there is enough evidence presented that, if the “conduct had been carried out in Canada, the judge would order the person to stand trial in Canada.” This control has been thrown out in many recent cases involving such things as selling marijuana seeds, online spamming, and Renee Boje’s sloppily handled and ridiculous case. Canada had no intention of prosecuting any of these ‘offenses’. In the cases involving Canadians, the US prosecutors stated, if Canada was not going to enforce laws the US felt were appropriate, then they would. In each case, the US prosecutors stated that these people were not to think they could disobey US law. Referring to Canadians. In Canada.

The US attitude towards Vancouver is well summed up by the Washington Post headline Canada’s Extradition Laws Help Make Vancouver a Grifter’s Haven. It is no coincidence that the lawyer most known for fighting extradition is based in Vancouver. While cities like Toronto or Ottawa, with their close economic ties to the US, may seem comfortable to the DEA and friends, Vancouver, with its nude beaches and shooting clinics, apprently looks like ‘the Wild West’. It is also very much an Asian city where the commercial, family, economic, and criminal ties are also largely connected to Asia, not the US. On the books, Toronto is the economic capital of Canada, the place where all the legal money is made and controlled. Off the books, a look at the lifestyle or real estate prices tell a completely different story, a reflection of the volume of illegal or offshore family money in Vancouver.

The US attitude towards Vancouver is rather that of a disciplinarian uncle towards a rebellious nephew, and the encroaching DEA, FBI, etc., have a “If you won’t discipline him, I will,” stance, completely inappropriate to one sovereign state negotiating with another. Towards Ontario or the prairies, where the same multinational corporations are influencing the policies of both governments, any questioning of US law is just considered gross impertinence. Canadian sovereignty is not properly recognized in either case, and that is entirely the fault of the Canadian federal government.

According to Botting, the Canada US Extradition Treaty has never been ratified and is not, in his opinion, even legal. Whether it is, or is not, there is still far more room for due diligence to be demanded in the extradition requests from the US. Requests which do not meet the dual criminality requirement, which would not be prosecuted in Canada, need to be refused (this would obviously include all Canadians operating in Canada). The Canadian government needs to demand at all times that the death penalty not be imposed, in accordance with the UN’s resolution. When Canadians are tried and sentenced in the US, the Canadian government needs to start meeting their responsibilities to bring prisoners home to serve their sentences.